Bush team hopes April appeal will revive personnel reforms

After being rebuffed by two federal judges on its plan to restructure the federal bureaucracy, the Bush administration is looking toward an April 6 appeal as a chance to revive what Deputy Defense Secretary Gordon England has described as an effort to "to change the fundamental system of government."

In the most recent setback, a Feb. 27 decision by Judge Emmet Sullivan of the U.S. District Court for the District of Columbia said that the Defense Department went too far in restructuring the collective bargaining system for its 700,000 civilian employees.

Six months earlier, another federal judge made a similar ruling against the Homeland Security Department's new labor-relations system for its 200,000 workers. Those two departments -- which employ about half of the federal workforce -- are in the vanguard of President Bush's attempt to restrict collective bargaining in the name of national security.

Sullivan ruled that the Pentagon went beyond Congress's intent in 2003 when it gave Defense and DHS until 2009 to come up with a new way of negotiating with unions. "The design of these regulations appears to rest on the mistaken premise that Congress intended flexibility to trump collective bargaining rights," Sullivan wrote, calling the rules "the antithesis of fair." Sullivan enjoined Defense from implementing its system, but invited the department to submit a revised plan.

Sullivan's ruling drew heavily on, and quoted directly from, the decision overturning the DHS regulations. That decision, by Judge Rosemary Collyer, also of the U.S. District Court for the District of Columbia, is the subject of the April appeal.

Both judges zeroed in on provisions in the new regulations giving high-level officials the authority to override collective bargaining agreements simply by invoking national security. Referring to Collyer's ruling, Sullivan called a collective bargaining agreement under such conditions "illusory." Sullivan also pounced on the Pentagon's attempt to replace the government-wide Federal Labor Relations Authority with an internal board appointed by the Defense secretary to decide labor disagreements. On this issue, he went beyond Collyer; she let DHS keep its internal board.

In appealing the ruling against DHS, government lawyers will make their case before a three-judge panel that includes one George W. Bush-appointed judge and one selected by his father. The panel will be led by Senior Judge Harry Edwards, a Carter appointee who is often cited as an expert in the field, based on his book Labor Relations Law in the Public Sector.

Now that two judges have weighed in against these systems, the appeals court is unlikely to overturn the decisions, says Donald Rider, a lawyer and a professor of human resources management and labor relations at the University of Maryland's University College.

Both Homeland Security and Defense will "have an uphill struggle in convincing an appellate court that the district courts' logic was flawed," Rider said. "Judge Sullivan was very resourceful in bringing in the analysis of his fellow Judge Collyer. I think an appellate court is going to have a more difficult time dismissing the reasoning of two district court judges than [it] would if this were a kind of stand-alone decision."

England said that DOD was prepared for Sullivan's ruling and will request an expedited appeal, as was granted in the DHS case. That could yield a decision in six months.

Timing matters. The authorizing legislation includes a sunset clause in the labor-relations section, as England pointed out in November hearings before the Senate Homeland Security and Governmental Affairs Committee. "In November 2009, our authority for the labor-relations provisions expires, unless it is extended by Congress," England said.

If the unions succeed in tying the labor revisions up in court long enough, the department's progress toward establishing the system by 2009 -- the next president's first year in office -- may be hampered enough to dissuade Congress from reauthorizing it.

The unions say their real goal has always been to get the regulations thrown out entirely, not just to delay them in the hope that a new president will stop the effort.

"We always have [timing] in the back of our mind, but it's not something that is realistically close enough now that we can essentially say, 'Well, we don't have to worry about these regulations, because they're going to sunset,' " said Joe Goldberg, a lawyer for the American Federation of Government Employees, who argued much of the unions' case before Sullivan.

The congressional committees that wrote the legislation scaled back the administration's original proposal, and some members are questioning the way the department interpreted their law.

Rob White, a spokesman for Rep. Tom Davis, R-Va., chairman of the House Government Reform Committee, said Davis is planning to hold hearings on the system before the DOD case even makes it to the appeals court. "After we've thoroughly reviewed the court's ruling and after the Defense Department determines what its next steps are, the committee will hold hearings on government personnel reform," White said.

Senate Homeland Security and Government Affairs Committee Chairman Susan Collins, R-Maine, voiced skepticism over the Pentagon's design even before Sullivan's ruling, recommending that a union representative sit on the new DOD labor-relations board.

Sen. Daniel Akaka, D-Hawaii, the senior Democrat on the Senate subcommittee with jurisdiction, said in a statement that he is holding out hope that the department will find a system the unions can agree to, rather than appeal.

"This ruling affirms my contention that [the Defense labor-relations plan] is a no-win situation for Hawaii and the nation's DOD civilian employees. Hopefully, the Department of Defense and the Office of Personnel Management will now engage in meaningful discussions with employee representatives and really listen to their suggestions to develop a personnel system that preserves collective bargaining and appeals in both name and substance."

England's remarks made the possibility of reworking its plans appear remote, but Defense has an incentive to work out the labor system before tackling the even trickier issues of pay, hiring, and promotion. Without a new labor system, the department could have to separately negotiate new rules with every federal employee bargaining unit in the country -- more than 1,000 -- and wait for their current contracts to expire, which may take years, said Joseph Swerdzewski, former general counsel of the Federation of Labor Authority and a consultant to the unions.